Attorney & Counselor at Law
ROBERT M PHILLIPS
WHAT IS HIPAA?
Note: The following questions and answers are taken directly from the Department of Health and Human Services website. The term “personal representative” as used in this context, means the person to whom you have given your Health Care Power of Attorney.
If someone has health care power of attorney for an individual, can they obtain access to that individual's medical records?
“Yes, an individual that has been given a health care power of attorney will have the right to access the medical records of the individual related to such representation to the extent permitted by the HIPAA Privacy Rule at 45 CFR 164.524.”
How does a covered entity identify an individual’s personal representative?
“State or other law determines who is authorized to act on an individual’s behalf, thus the Privacy Rule does not address how personal representatives should be identified. Covered entities should continue to identify personal representatives the same way they have in the past. However, the HIPAA Privacy Rule does require covered entities to verify a personal representative’s authority in accordance with 45 CFR 164.514(h).”
Can the personal representative of an adult or emancipated minor obtain access to the individual's medical record?
“The HIPAA Privacy Rule treats an adult or emancipated minor’s personal representative as the individual for purposes of the Rule regarding the health care matters that relate to the representation, including the right of access under 45 CFR 164.524. The scope of access will depend on the authority granted to the personal representative by other law. If the personal representative is authorized to make health care decisions, generally, then the personal representative may have access to the individual’s protected health information regarding health care in general. On the other hand, if the authority is limited, the personal representative may have access only to protected health information that may be relevant to making decisions within the personal representative’s authority. For example, if a personal representative’s authority is limited to authorizing artificial life support, then the personal representative’s access to protected health information is limited to that information which may be relevant to decisions about artificial life support.
There is an exception to the general rule that a covered entity must treat an adult or emancipated minor’s personal representative as the individual. Specifically, the Privacy Rule does not require a covered entity to treat a personal representative as the individual if, in the exercise of professional judgment, it believes doing so would not be in the best interest of the individual because of a reasonable belief that the individual has been or may be subject to domestic violence, abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual. This exception applies to adults and both emancipated and unemancipated minors who may be subject to abuse or neglect by their personal representatives.”
May personal representatives access health information based on a non-health care power of attorney?
“No. Except with respect to decedents, a covered entity must treat a personal representative as the individual only when that person has authority under other law to act on the individual’s behalf on matters related to health care. A power of attorney that does not include decisions related to health care in its scope would not authorize the holder to exercise the individual’s rights under the HIPAA Privacy Rule….
With respect to personal representatives of deceased individuals, the Privacy Rule requires a covered entity to treat the [executor] as the individual as long as the person has the authority under law to act for the decedent or the estate.”
Source: United States Department of Health and Human Services.
“Yes, an individual that has been given a health care power of attorney will have the right to access the medical records of the individual related to such representation to the extent permitted by the HIPAA Privacy Rule at 45 CFR 164.524.”
How does a covered entity identify an individual’s personal representative?
“State or other law determines who is authorized to act on an individual’s behalf, thus the Privacy Rule does not address how personal representatives should be identified. Covered entities should continue to identify personal representatives the same way they have in the past. However, the HIPAA Privacy Rule does require covered entities to verify a personal representative’s authority in accordance with 45 CFR 164.514(h).”
Can the personal representative of an adult or emancipated minor obtain access to the individual's medical record?
“The HIPAA Privacy Rule treats an adult or emancipated minor’s personal representative as the individual for purposes of the Rule regarding the health care matters that relate to the representation, including the right of access under 45 CFR 164.524. The scope of access will depend on the authority granted to the personal representative by other law. If the personal representative is authorized to make health care decisions, generally, then the personal representative may have access to the individual’s protected health information regarding health care in general. On the other hand, if the authority is limited, the personal representative may have access only to protected health information that may be relevant to making decisions within the personal representative’s authority. For example, if a personal representative’s authority is limited to authorizing artificial life support, then the personal representative’s access to protected health information is limited to that information which may be relevant to decisions about artificial life support.
There is an exception to the general rule that a covered entity must treat an adult or emancipated minor’s personal representative as the individual. Specifically, the Privacy Rule does not require a covered entity to treat a personal representative as the individual if, in the exercise of professional judgment, it believes doing so would not be in the best interest of the individual because of a reasonable belief that the individual has been or may be subject to domestic violence, abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual. This exception applies to adults and both emancipated and unemancipated minors who may be subject to abuse or neglect by their personal representatives.”
May personal representatives access health information based on a non-health care power of attorney?
“No. Except with respect to decedents, a covered entity must treat a personal representative as the individual only when that person has authority under other law to act on the individual’s behalf on matters related to health care. A power of attorney that does not include decisions related to health care in its scope would not authorize the holder to exercise the individual’s rights under the HIPAA Privacy Rule….
With respect to personal representatives of deceased individuals, the Privacy Rule requires a covered entity to treat the [executor] as the individual as long as the person has the authority under law to act for the decedent or the estate.”
Source: United States Department of Health and Human Services.